Why Is Libya’s Transitional Council Thumbing Its Nose at the ICC?

What better way to welcome a new blogger to the blogosphere than to rebut his inaugural argument?

In the first substantive post on his promising new Causal Loop blog, Georgetown University political-science student Anton Strezhnev applies game theory to present-day Libya to try to explain why that country’s National Transitional Council (NTC) is not cooperating fully with the International Criminal Court (ICC). Strezhnev focuses on the NTC’s welcoming of Sudanese president Omar al-Bashir, for whom the ICC has issued an arrest warrant, but the Council is arguably failing to cooperate with the ICC by dragging its feet on a trial for Saif Ghaddafi as well. Strezhnev starts with a nice recapitulation of one body of relevant theory:

Political science theory suggests that a state with a recent history of civil war that has a strong commitment to rule-of-law will be less likely to bind itself to the ICC. The explanation lies in the intersection between the role of [international organizations] and Libyan domestic political imperatives. Leaders are very careful about surrendering state sovereignty to international organizations and only do so when there is a clear political benefit. Credible commitment or “hand-tying” theories of international institutions emphasize the advantages of being restrained by an external actor. Governments may want to convince domestic audiences that they will refrain from a particular behavior but lack the ability to make that commitment believable. International agreements provide a means of signalling credibility since enforcement is no longer in the hands of the (untrustworthy) government.

He then applies this theory to the Libyan case as follows:

If the commitment explanation for state behavior is accurate, then the NTC’s tenuous relationship with the International Criminal Court may suggest a belief by Libyan transitional leaders that their domestic reforms are a sufficient signal that they will not return to Gaddafi-style repression. Given the NTC’s professed goal of establishing democratic and accountable institutions, one would expect Libya to be less likely to turn to the ICC as a post-civil war commitment mechanism, given that the sovereignty costs are still high, but the signalling benefits are not uniquely advantageous. However, the task of disarming militias and integrating fighters remains daunting and if not done properly, could increase the risk of renewed violence. Indeed, if the NTC begins to lack credibility in the eyes of some factions, then it may start looking outward to international organizations as a means of reassurance.

Strezhnev concisely summarizes an important theory, but I think the Libyan case actually illustrate the limits of this theory rather than its validity. From the stories I’ve read, I get the sense that the NTC’s political commitments are widely regarded as dubious at best. Libya’s transitional government was born with a credibility problem, and that problem hasn’t gotten much better since Ghaddafi’s forces were finally defeated. If anything, the NTC’s credibility seems to have eroded in recent weeks, because the council is now expected to actually govern, and so far, it has proved unable to do so. As the International Crisis Group summarized in a December 2011 report on the Libya transition,

The NTC’s desire to bring the militias under central control is wholly understandable; to build a stable Libya, it also is necessary. But obstacles are great. By now, [the militias] have developed vested interests they will be loath to relinquish. They also have become increasingly entrenched…They also have advantages that the NTC and the National Army lack, notably superior local knowledge and connections, relatively strong leaderships and revolutionary legitimacy. In contrast, the NTC has had to struggle with internal divisions, a credibility deficit and questions surrounding its effectiveness. But the heart of the matter is political. The security landscape’s fragmentation – and militias’ unwillingness to give up arms – reflects distrust and uncertainty regarding who has the legitimacy to lead during the transition.

This does not sound to me like a body exuding the kind of credibility Strezhnev inferred from its decision to host Bashir.

To understand why the transitional council is still keeping the ICC at arm’s length, I think we need to think about the multiple games it’s trying to play at one time. The locus classicus on the subject is George Tsebelis’ Nested Games, in which the “games” in question are the kinds of strategic interactions Strezhnev describes. As Tsebelis puts it (p. 7),

If, with adequate information, an actor’s choices appear to be suboptimal, it is because the observer’s perspective is incomplete. The observer focuses attention on only one game, but the actor is involved in a whole network of games–what I call nested games. What appears suboptimal from the perspective of only one game is in fact optimal when the whole network of games is considered.

It would be a stretch to describe anything the NTC has done so far as “optimal,” but I think the metaphor of nested games is very useful here. The NTC wants and needs some things from the states that have endorsed the ICC, but it also wants and needs things from the militias that emerged during the civil war, and from neighbors like Sudan. Moreover, the members of the NTC are themselves presumably engaged in lots of internal haggling. In other words, the transitional government is simultaneously engaged in bargaining at four levels–internal, domestic, regional, and global–and actions that look like the prudent play on one of those levels will often look wrong-headed on others.

The decision to welcome Bashir is a great case in point. To backers of the ICC, Bashir’s visit seems like a thumb in their eye, but as Multilateralist blogger David Bosco points out in a recent post, the NTC’s decision to welcome the Sudanese president “is utterly unsurprising” in regional context.

As a weak player in a rough neighborhood, Libya’s new authorities need the support of powerful states as the move forward. They don’t need the ICC anymore (if they ever did); the court is now a nettlesome complication. So Libya will happily endure blistering press releases from the human rights community in order to cement relations with a rich and powerful neighbor. The only thing that would change that equation is the insistence of other powerful states that there would be serious consequences for welcoming the Sudanese president. Bashir’s arrival suggests that message either was not sent–or was not received.

In the case of Saif Ghaddafi, the domestic game seems to be the crucial one. When rebels from Zintan captured the son of the deposed dictator was captured in November, they initially refused to hand him over to the NTC, and reports (like this one) suggested that the high-profile prisoner was being used “as a bargaining chip in the contest between rival groups for power in the new Libya.” Seen from this perspective, the NTC’s recalcitrance looks less like a marker of the council’s domestic credibility than a function of its inherent weakness.

Whatever the exact sources of the NTC’s decisions may be, it’s clear that the ICC’s arrest warrant for President Bashir and its demand to host the trial of Saif Ghaddafi have become points of contention in all of the political games the NTC is attempting to play, and incentives at the various levels seems to be pulling the council in different directions. Even if it could make up its own mind, the NTC doesn’t yet have the power to pick a winner, and arresting Bashir or trying to force a handover of Saif before it’s capable of doing so could shred its already-gossamer authority.